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Mr. Kastenmeier.

Mr. KASTENMEIER. I am pleased, Mr. Chairman, that you are proceeding with this, because it obviously is an important bill and it has very considerable impact on the national community. It is something a lot of people have waited for a long time, and I think the hearing should be extremely important in terms of the ultimate disposition of this matter. I congratulate you for proceeding with it. Mr. EDWARDS. Thank you. Mr. Sensenbrenner. Mr. SENSENBRENNER. Thank you. Good morning.

The time has come for the disabled of America to achieve their independence. They should be given as many opportunities as possible to be able to live a normal life and do the everyday things we all do, such as shop for themselves, work along with others, call for pizza, go to restaurants, etc.

This Americans with Disabilities Act legislation gives the disabled a chance to succeed, and I applaud this effort and strongly support it.

The witnesses before us today agree that the Americans with Disabilities Act is a worthwhile goal. They have come here to work with us to make this bill as effective as possible with the minimum of negative impact upon business. It is true that the business community will bear the majority of costs associated with this bill, and I intend to listen carefully to their concerns and to work to make this bill as palatable as possible to all concerned. My aim is to make this bill a victory for the disabled, not a victory for lawyers and another “lawyers and accountants full-employment act,” which Congress seems to be passing so often.

So, thank you for being here today, and I look forward to the testimony.

Mr. EDWARDS. Thank you, Mr. Sensenbrenner.
The gentleman from Florida, Mr. James.

Mr. JAMES. I, likewise, look forward to the testimony and hope that we can work out definitions that meet everyone's satisfaction so as to proceed to protect the rights of the disabled in every possible way without interference and creating major problems with the definition section.

Thank you.

Mr. EDWARDS. Thank you, Mr. James.
The first witnesses will testify as a panel.

Mr. John Motley is director of Federal Government relations, National Federation of Independent Business here in Washington, DC; Mr. Christopher J. Hoey is assistant treasurer/assistant general counsel for the Woolworth Corp., who is testifying on behalf of the International Mass Retail Association here in Washington; and Mr. James A. DiLuigi, AIA, is director, technical information, Marriott Corp., testifying on behalf of the American Hotel and Motel Association, Washington, DC.

[Witnesses sworn.

Mr. EDWARDS. Without objection, your full testimony will be made a part of the record and Mr. Motley, are you first?

Mr. Motley. I'd like to go first, Mr. Chairman.

Mr. EDWARDS. You may proceed.

STATEMENT OF JOHN MOTLEY, DIRECTOR OF FEDERAL GOV

ERNMENT RELATIONS, NATIONAL FEDERATION OF INDEPENDENT BUSINESS

Mr. MOTLEY. Thank you, Mr. Chairman. First of all, let me thank you and the members of the subcommittee for the opportunity for NFIB to testify on the Americans with Disabilities Act on behalf of its 570,000 members across the country.

I guess I should clarify in the beginning that NFIB does not officially support this legislation. In fact, we have a membership vote of roughly 87 percent against the original bill as introduced. We are not opposing the legislation at this time though, and we'll get a little bit more into that as I get into my testimony.

I'd like to address first if I could the types of businesses that we are concerned about in terms of compliance with this legislation if it's passed. Most of them could, I think, be considered main street lifestyle-type businesses rather than franchises or some of the larger businesses that you might think of when you think about access for the disabled.

They would be things like the dress shop that might be in the turn of the century building; dry cleaners establishments which are located on streets with very steep inclines; wood working shops that were started as a part-time and are now a full-time business but operating out of the basement of an individual; hardware stores with narrow aisles stacked with goods, or possibly the jewelry business which was established in a converted mill, which was converted some 20 or 30 years ago in New England. There's an awful lot of them which are there and are being used for that type of purpose.

We are not necessarily well off financially. In a recent survey of NFIB members, we found that roughly 43 percent of our membership grossed less than $350,000 a year, and 57 percent of those polled took out less than $30,000 a year from their businesses. They are not large firms; they do not have large professional staffs. They average somewhere in the neighborhood of 11 to 12 employees. They certainly do not have lawyers on staff or professional personnel administrators on staff, and many of them, roughly one out of four, do not even have accountants. They do their own books.

With that in mind, Mr. Chairman, I would like to get to some of our concerns about the legislation. As I mentioned before, NFIB does not want to oppose the ADA bill. In fact, we believe very strongly in the bill's intent to provide greater access for the disabled, and we believe it's a well-intentioned piece of legislation.

However, we are concerned about the approach taken by the ADA bill to mandate significant and often expensive changes in nearly every business in America. It should encourage businesses to increase opportunities for the disabled, not threaten them into compliance.

There exists a fundamental difference, we believe, between other civil rights legislation and the ADA bill; namely, that access for the disabled comes at the expense of others. These are expenses owners are concerned with the ADA bill for two major reasons: The need for clarity and its costs.

The intent of the bill is clear. However, the ambiguous language used in certain parts of the bill and its unknown price tag conjure up images within the small business community of a parade of attorneys and lawsuits to the average small business owners. Proponents argue that accommodations costing $25, $50 or $100 are not overly burdensome and that we certainly can agree with.

Unfortunately, we believe that this ignores the accumulated effect of accommodating a number of disabilities in one business. Keep in mind that not all costs are small. For example, it costs $1,000 to $10,000 for a concrete ramp; $3,000 for a new exterior door; $300 to $3,000 to modify a public restroom; $23 an hour for a certified signer; and $5,000 to purchase a computer with speech synthesizer for the blind.

Definitions remain a major problem within the ADA bill, as many of you referred to in your opening statements, since there is little understanding of the specific requirements that it seems to place on business. General guidelines and case law are inadequate in providing specific parameters for business compliance.

For example, the regulations of the Rehabilitation Act do not list what types of disabilities are covered. It is simply ridiculous, we believe, to expect that individual business owners, the type that I mentioned before, know which conditions are legitimate disabilities and therefore must be accommodated.

A solution that NFIB would support would include a list of disabilities, preferably with a layman's description, so that both the business owner and the disabled individual knows if the ADA applies. Small business owners, as I mentioned before, are not specialists in disabilities, nor are they legal experts. Yet the ADA bill, with its current broad approach, demands some-the same level of awareness from them as it does from larger businesses, with their staffs of legal experts and other specialists.

The drafters of the ADA bill recognize the problems faced by many small businesses, and they included a small business exemption in the employment section of the bill. However, an exemption for smaller firms was left out of the public accommodations section. Since the burdens we believe are relatively the same for those businesses under both sections of the bill, an exemption we believe is appropriate in both sections of the bill.

The business community over in the Senate fought long and hard to clarify a number of terms that were either inadequately defined in the original version of the ADA or are new. Even so, some terms such as “readily achievable,” “reasonable accommodation," and "undue hardship” have not been adequately addressed.

For example, while a business owner may believe that modifications costing $500 to $5,000 would constitute an undue hardship for his own business, a court may feel differently. A better solution from the NFIB's standpoint would be to use a percentage of net profit cap to define what a business is expected to spend to accommodate the disabled.

NFIB believes that several changes in the enforcement provisions of title III are necessary. Of primary importance is the definition of “pattern or practice of discrimination.” Currently, this phrase is defined differently in various laws. We believe that it would be reasonable to define this phrase as suggested by the Attorney General in his letter to Senator Kennedy. He states that “pattern or practice” should refer to egregious and willful acts of discrimination.

Also of concern in the enforcement section of title III is the undefined phrase "monetary damages." While the Senate committee report indicates that monetary damages are not punitive, it does not state what is intended. The chief Senate sponsor of the bill, Senator Harkin, stated firmly and repeatedly during Senate debate that damages could be awarded under the ADA bill-could not be awarded, excuse me.

Therefore, NFIB strongly urges that monetary damages be specifically defined to mean out of pocket expenses incurred by a plaintiff as a result of the actions of a business. Such clear direction would provide consistency and clarity.

In conclusion, Mr. Chairman, without question the ADA bill in our estimation is one of the most sweeping civil rights bills in decades. It is not enough to agree with the goals of this legislation. Members of this committee must also reach a balance between its noble intentions and the real world consequences of its vague language.

NFIB urges member to carefully weigh the ramifications of specific language in the ADA bill, so that the clearest and most enforceable statute can be enacted. Thank you, Mr. Chairman.

Mr. EDWARDS. Thank you very much, Mr. Motley. [The prepared statement of Mr. Motley follows:

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The National Federation of Independent Business (NFIB) is a

voluntary membership organization made up of more than 570,000

small and independent business owners nationwide. Our membership

parallels the national business population in that approximately 50% of

our members own retail and service enterprises; 25% are in

manufacturing and construction; and the remaining 25% operate agricultural, transportation, mining, wholesale, financial, insurance, or real estate enterprises. The average NFIB member has 13 employees and grosses about $350,000 in annual sales.

NFIB does not want to oppose the ADA bill. In fact, we believe the bill's intent -- to provide greater access for the disabled -- is noble and

well intentioned. Proponents of the bill have noted that small

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businesses voluntarily have done more than larger businesses to

accommodate the disabled. Small business owners view the disabled

as educated, reliable, and talented employees. In a diminishing labor pool, the disabled are high on the list of desirable employees. And

employers take pride in encouraging and sharing their success with

their disabled employees.

The Guardian of

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